This post examines an opinion from the Court of Appeal –Third District, California: In re D.J., 2016 WL 1733462 (2016). The court begins by noting that
[i]n March 2015, a delinquency petition
was filed alleging the minor, D.J., made a felonious terrorist threat. (California Penal Code § 422). At the conclusion of a contested jurisdictional hearing, the
juvenile court found the allegation true but deemed D.J.'s violation of section
422 a misdemeanor. D.J. appeals, contending there was insufficient evidence to
support a finding that the victim was in sustained fear for her own
safety.
In re D.J., supra.
California Penal Code § 422(a) provides as follows:
[a]ny person who willfully threatens to
commit a crime which will result in death or great bodily injury to another
person, with the specific intent that the statement, made verbally, in writing,
or by means of an electronic communication device, is to be taken as a threat,
even if there is no intent of actually carrying it out, which, on its face and
under the circumstances in which it is made, is so unequivocal, unconditional,
immediate, and specific as to convey to the person threatened, a gravity of
purpose and an immediate prospect of execution of the threat, and thereby
causes that person reasonably to be in sustained fear for his or her own safety
or for his or her immediate family's safety, shall be punished by imprisonment
in the county jail not to exceed one year, or by imprisonment in the state
prison.
Getting back to the opinion in the D.J. case, the Court of Appeal went on to explain how, and why, the
delinquency case arose:
At about 12:48 p.m. on March 25, 2015,
Leise Martinez, principal of the New Technology High School in Sacramento,
received a threatening e-mail that was addressed to her
and other staff and students. The subject line of the e-mail stated, `GME, we're going to drop some students if you
don't, quote, unquote, fuck give back wha (sic) is ours one.’ The body
of the e-mail stated, `We are fucking
going to be accrossed the street at 3:50 p.m. [C]onfront us then, or we'll have
to shoot up the school. This is our last warning, we've already hacked most of
the student[']s accounts (teachers too). We are Men and a woman tha [sic]
you shouldn't have, messed with. My associates want to remain hidden, but I
don't. I have light skin, close to 6 foot, easily angered and computer technology is what I
live for. REMEMBER ASSHOLES, if ou [sic] demands are'nt [sic] met
we will start killing students. We only have one demand and you should know it
by now!’
Describing her initial reaction to
reading the e-mail, principal Martinez testified, `Pounding
heart, everything seemed to get really quiet.’ She got up, looked outside,
walked out to the front of the school and `looked up the street into the quad,
and just checked to see that all was in order.’ When asked if she was `concerned
for [her] safety and the safety of those in the school,’ she replied
`Definitely.’
Martinez took the threats in the e-mail `really seriously’ and `took what it said literally and
took measures.’ Regarding these measures, she testified, `I called 911. I
informed my supervisor, district personnel so that they would be aware of the
situation, took safety measures in terms of putting the school on lockdown,
made appropriate communication with community members, students, and families.’
In re D.J., supra.
The opinion goes on to explain that,
[a]t approximately 2:00 p.m.,
Sacramento Police Officer Carlos Martinez went to the school in response to `a
threats call.’ He discussed the e-mail with the principal
and the school safety manager and compared it with several previous e-mails `sent to staff regarding cell phones and electronic
devices that were taken from students.’
The school remained on lockdown until
the regular dismissal time at 3:29 p.m., when the students, monitored by two
police officers, were dismissed promptly. Several other police officers were
posted near the school to be on the lookout for anyone matching the author's
self-disclosed description. No suspect matching the description was seen.
The police stayed at the school until about 5:00 p.m., and Officer Martinez
monitored the school the next day. Asked how serious she took the threat,
principal Martinez testified, `I took it absolutely seriously.’
In re D.J., supra.
It concludes the explanation of how the case arose by noting
that,
[a]s a result of the investigation,
D.J.'s computer IP
address was linked to the threatening e-mail.
Acknowledging his Miranda rights, D.J. admitted to Officer Martinez
that he sent the threatening e-mail, but claimed `he had sent it as a
joke and that it—basically, the joke went too far.’
On March 30, 2015, a juvenile wardship
petition was filed alleging D.J. had committed one felony count of making a
terrorist threat. (§422.) During the contested jurisdictional hearing, D.J. did
not testify or call any witnesses in his defense.
In re D.J., supra.
The opinion then explained that,
[i]n finding the People had sustained
their burden to prove D.J. violated section 422 beyond a reasonable doubt,
the court found there was sufficient evidence that principal Martinez was in
sustained fear from the threat. The court said, `She gets this email threaten[ing] to shoot up
the school. She is concerned both for her own safety and for the safety of the
students and she's not only concerned but I think she is in fear.’ Viewing all
the circumstances, the court also considered her postthreat conduct—the 911
call, the district supervisor call, and the school lockdown—finding `that this
[evidence] does meet the sustained fear [standard].’
In re D.J., supra.
The Court of Appeal began its analysis of D.J.’s appeal by
explaining that
D.J. contends one of the elements of making a
terrorist threat—that the person receiving the threat `be in sustained fear for
his or her safety’—was not supported by sufficient evidence.
In re D.J., supra.
Before the Court of Appeals took up the substantive merits
of D.J.’s argument on appeal, it explained the “standard of review” it was
required to apply in analyzing his argument:
Where, as here, a defendant challenges
the sufficiency of the evidence to support his conviction, the standard of
review is well settled: `On appeal, the test of legal sufficiency is whether
there is substantial evidence, i.e., evidence from which a reasonable trier of
fact could conclude that the prosecution sustained its burden of proof beyond a
reasonable doubt. [Citations.] Evidence meeting this standard satisfies
constitutional due process and reliability concerns. [Citations.] [¶] While the
appellate court must determine that the supporting evidence is reasonable,
inherently credible, and of solid value, the court must review the evidence in
the light most favorable to the [judgment], and must presume every fact the
jury could reasonably have deduced from the evidence.’ (People v. Boyer (2006) 38 Cal.4th 412, 479-480.)
`Issues of witness credibility are for
the [trier of fact].’ (People v. Boyer,
supra, 38 Cal.4th at p. 480). The testimony of a single witness
is sufficient to support a conviction unless the testimony is inherently
improbable or physically impossible. (People
v. Young (2005) 34 Cal. 4th 1149, 1181.) `“‘To warrant the
rejection of the statements given by a witness who has been believed by the
trial court, there must exist either a physical impossibility that they are
true, or their falsity must be apparent without resorting to inferences or
deductions.’’’ (People v. Allen
(1985) 165 Cal. App.3d 616, 623).
Reversal for insufficient evidence is
warranted only where it clearly appears that upon no hypothesis whatever is
there sufficient evidence to support a conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331).
In re D.J., supra.
The Court of Appeals then took up the argument D.J. made in
his appeal, i.e., that the evidence did not prove that Martinez “`was in
sustained fear for his or her safety’”. In re D.J., supra. It began by explaining that
[t]o prove a violation of section 422,
the prosecution must prove, among other things, `that the threat actually caused
the person threatened “to be in sustained fear for his or her own safety or for
his or her immediate family's safety.”’ (People
v. Toledo (2001) 26 Cal.4th 221, 228.) This element `requires proof of a mental
element in the victim.’ (People v. Allen (1995) 33 Cal.App.4th 1149,
1156.) Section 422 does not define `sustained’ fear. (Allen, at p.
1156.)
The Allen court
defined `sustained’ by its opposites, stating, `we find that it means a period
of time that extends beyond what is momentary, fleeting, or transitory.’ (Ibid. [holding
that `Fifteen minutes of fear of a defendant who is armed, mobile, and at
large, and who has threatened to kill the victim and her daughter, is more than
sufficient to constitute “sustained” fear for purposes of this element of
section 422’].)
In re D.J., supra.
The opinion then explains that
D.J. acknowledges that the court
credited principal Martinez's testimony that she took the threat `really
seriously’ and that she had a `[p]ounding heart.’ He also recognizes that the
court stated that `given the reaction of the police coming and the lockdown I
think this does meet the sustained fear [standard].’ However, D.J. fails to
address anywhere in his opening brief the most pertinent testimony relating
to the issue he has raised on appeal, which is contained in the following
colloquy:
`[Prosecutor]: Okay. So when you read
that e-mail, were you concerned for your safety and the safety of those in the
school?’
[Principal Martinez]: Definitely.’
Completely ignoring this critical testimony,
D.J. attacks the juvenile court's finding by arguing that the actions principal
Martinez took in response to the threatening e-mail do not support the finding
that she was in `sustained fear for her safety’ but instead `were more
consistent with her merely complying with the school district's protocol for
how to respond to these types of threats.’
D.J. attempts to support this assertion
by pointing to alleged inconsistencies between principal Martinez's postthreat
conduct and the existence of sustained fear. His arguments cover topics such
as: (1) the principal's initial survey of the scene; (2) the type of lockdown;
(3) the prior `prank’ e-mails; (4) the manner of the police dispatch; and (5)
Officer Martinez's initial assessment of the threat.
In making these arguments, D.J. paints
the evidence in a light most favorable to himself. However, on review, we `must
review the evidence in the light most favorable to the prosecution, and must
presume every fact the jury could reasonably have deduced from the evidence.’ (People v. Boyer, supra, 38 Cal.4th
at p. 480.)
In re D.J., supra (emphasis in the original).
The Court of Appeals went on to explain that
[i]n People v. Sanghera (2006) 139 Cal.App.4th 1567, we
discussed how the standard of review controls not only the nature and scope of
our review, but also the defendant's manner of argument. We stated, `it is not
enough for the defendant to simply contend, “without a statement or analysis of
the evidence, . . . that the evidence is insufficient to support the judgment[
] of conviction.’ [Citation.] Rather, he must affirmatively demonstrate that
the evidence is insufficient.” (Sanghera, at p. 1573.) Equally
fruitless is `citing only [the defendant's] own evidence, or . . . arguing
about what evidence is not in the record, or . . . portraying
the evidence that is in the record in the light most favorable to himself.’ (Ibid.)
To prevail on a sufficiency of the
evidence argument, `the defendant must set forth in his opening brief all of
the material evidence on the disputed elements of the crime in the light most
favorable to the People, and then must persuade us that evidence cannot
reasonably support the jury's verdict. [Citation.] If the defendant fails
to present us with all the relevant evidence, or fails to present that evidence
in the light most favorable to the People, then he cannot carry his burden of
showing the evidence was insufficient because support for the [court]'s verdict
may lie in the evidence he ignores.’ (Id.
at p. 1574.)
In re D.J., supra (emphasis in the original).
The Court of Appeals then enunciated its ruling the case,
explaining that
D.J.'s failure to discuss principal
Martinez's testimony that she `definitely’ was concerned for her personal
safety is serious and fatal to his appeal because we `resolve[ ] neither
credibility issues nor evidentiary conflicts,’ but defer to the trier of fact
for `resolution of conflicts and inconsistencies in the testimony.’ (People v. Young, supra, 34 Cal.4th
at p. 1181.)
Additionally, his one-sided evaluation
of principal Martinez's postthreat response is out of harmony with the
requirements of our standard of review. To illustrate, his arguments include
numerous conclusory statements about how `wholly illogical,’ `absurd,’ `not
reasonable,’ and `inconceivable’ it would be for the court to find sufficient
evidence of sustained fear based on what principal Martinez did. These
arguments fail to acknowledge that upon its consideration of the totality of
the circumstances, the juvenile court did not reach the same conclusion he does
with respect to whether principal Martinez experienced sustained fear. We
cannot and will not reweigh the evidence the court found sufficient or close our
eyes to the evidence D.J. ignored.
In sum, D.J. has failed to carry his
burden of persuading us, in light of all material
evidence presented in the light most favorable to the
judgment, that there was insufficient evidence to support the court's finding
that principal Martinez was in sustained fear.
In re D.J., supra (emphasis in the original).
The Court of Appeals therefore affirmed D.J.’s misdemeanor
conviction. In re D.J., supra.
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